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CAUT Bulletin Archives

December 1999

Employment Insurance Ruling Marks Victory for Sessional Instructors

Mark Franke
While sessional teaching is playing an increasingly important role in undergraduate education, persons taking up these positions tend to perceive their labour as undervalued within the university. The work of creating, preparing and conducting new courses (often at relatively short notice) generally seems more rewarding at a personal and professional level than it is remunerative.

Whether or not they are truly neglected as workers by the respective departments that hire them, sessional instructors at Canadian universities and colleges face serious concerns in how these institutions' payroll officers and the federal government measure their labour outputs.

Under Revenue Canada rules, Canadian schools typically register a fixed number of hours for the services performed by sessional instructors. But in the vast majority of cases -- especially where one is hired as "part-time" -- this calculation grossly underestimates actual hours worked.

Despite having worked as much as 12 months in a row, when sessional instructors fulfill their contracts, they are often ineligible for the employment insurance benefits they may need to sustain themselves until the next teaching opportunity arises.

Placed personally in this position in early 1998, I discovered the chronic misrepresentation of hours worked by sessional instructors may be successfully challenged by the same set of regulations that have permitted this ongoing problem.

In January of 1998, I submitted an application for EI benefits on the basis of having just completed teaching contracts for the summer and fall of 1997 at the University of Victoria. My personal records demonstrated I had worked at least 15.5 hours more than the 910 hours required for benefits.

Yet, the official record of employment I received from UVic indicated I had worked only 344 hours in fulfilling my teaching duties. My claim for benefits was rejected on the basis of this document, as it was again at two different levels of appeal.

However, after I presented my case and argued my appeal in a hearing at the Tax Court of Canada in Vancouver on July 29, 1999, Judge Michael J. Bonner ruled the federal government had erred in accepting the record of hours provided to them by UVic.

As is often the case for sessional instructors, I was hired by UVic with only the vague agreement that I perform "teaching duties." In addition, as is also common practice, my appointment papers allotted lump sums of money for each course taught. And the hours worked that UVic registered on my record of employment were derived from an abstract "full-time" or "part-time" and the number of hours scheduled for classroom teaching.

My complaints were based on the fact that this formula did not sufficiently account for the hours I needed to properly prepare and write lectures, and it left completely unrepresented the many hours I spent evaluating assignments, supervising a teaching assistant, consulting with students during office hours, writing and invigilating exams, and creating and preparing the courses to begin with.

In addition, I argued that this formula was not consistent with the intent behind it. For example, through late July and August of 1997 I was hired to teach two summer courses that required me to lecture for a combined total of 20 hours a week. Yet, as a "full-time" instructor, the formula deemed me to be teaching only nine hours a week. And the hours allotted to me for preparation and other duties outside class time were reckoned from this incorrect nine-hour figure.

Counsel for Revenue Canada argued in the court against my appeal on the basis of Subsection 10(1) of the employment insurance regulations, which reads:

"Where a person's earnings are not paid on an hourly basis but the employer provides evidence of the number of hours that the person actually worked in the period of employment and for which the person was remunerated, the person is deemed to have worked that number of hours in insurable employment."

However, Judge Bonner rejected this stand, given that UVic did not and could not offer any evidence whatsoever of the hours I had "actually worked."

Furthermore, despite the fact much of the labour I had put into preparing my courses was performed prior to the beginning of classes and thus prior to "the period of employment," the judge ruled I could justifiably include such labour time in my calculation of hours, as this work was required for the proper fulfillment of my general teaching duties.

This judgment provides a small victory for sessional instructors seeking greater respect in the workplace. And it suggests Canadian academic institutions must become far more explicit in the expectations they have of their temporary teaching staff. In the meantime, sessional instructors would do well to keep detailed records of the hours they put into the job from the moment of appointment.

Instructor Mark Franke has taught at both the University of Victoria and the University of Northern British Columbia.